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UPDATED: December 15, 2014 NO. 51 DECEMBER 18, 2014
Upholding Maritime Claims
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The Philippines has recently attempted to initiate arbitration proceedings with China over what it claims are violations of the UN Convention on the Law of the Sea. What follows is a summary of China's position on the matter:

I. On January 22, 2013, the Department of Foreign Affairs of the Republic of the Philippines presented a note verbale to the Embassy of the People' s Republic of China in the Philippines, stating that the Philippines had initiated compulsory arbitration proceedings with respect to its dispute with China over "maritime jurisdiction" in the South China Sea. On February 19, 2013, the Chinese Government rejected and returned the Philippines' note verbale together with the attached Notification and Statement of Claim. The Chinese Government stated that it will neither accept nor participate in the arbitration thus initiated by the Philippines.

The Position Paper of the People's Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines (Position Paper) is intended to demonstrate that the Arbitral Tribunal established at the request of the Philippines for the present arbitration (Arbitral Tribunal) does not have jurisdiction over this case. No acceptance by China is signified in this Position Paper of the views or claims advanced by the Philippines. Nor shall this Position Paper be regarded as China' s acceptance of or participation in this arbitration.

II. The essence of the subject matter of the arbitration is the territorial sovereignty over several maritime features in the South China Sea, which does not fall under the interpretation or application of the UN Convention on the Law of the Sea (Convention).

China has indisputable sovereignty over the South China Sea Islands (the Dongsha Islands, the Xisha Islands, the Zhongsha Islands and the Nansha Islands) and the adjacent waters. Since the 1970s, the Philippines has illegally occupied or laid claims to some maritime features of China in the South China Sea. In addition, the Philippines has also illegally explored and exploited the resources on or around those maritime features and in the adjacent maritime areas. The Philippines' activities mentioned above have violated the UN Charter and international law, and seriously encroached upon China's territorial sovereignty and maritime rights and interests. The Chinese Government has always been firmly opposed to these actions of the Philippines, and consistently made solemn representations and protests to the Philippines.

The Philippines has summarized its claims for arbitration in three categories: First, China's assertion of the "historic rights" in the South China Sea is inconsistent with the Convention; Second, China's claim to entitlements, based on certain rocks, low-tide elevations and submerged features in the South China Sea, of 200 nautical miles and more, is inconsistent with the Convention. Third, China has unlawfully interfered with the Philippines' exercise of its rights under the Convention.

The first claim is about historic rights. The challenge is that China can claim ownership. However, it is a general principle of international law that sovereignty over land territory is the basis for the determination of maritime rights. Only after the extent of China's territorial sovereignty in the South China Sea is determined can a decision be made on the extent of China's maritime claims in the South China Sea. As to the second category of claims, China believes that the nature and maritime entitlements of certain maritime features in the South China Sea cannot be considered in isolation from the issue of sovereignty. Regarding the third category of claims, China maintains that, based on its sovereignty over relevant maritime features and the maritime rights derived therefrom, China's activities in the South China Sea are both lawful and justified. The Philippines claims that China's actions have encroached upon areas under its own jurisdiction. Before this claim can be decided upon, sovereignty over the relevant maritime features must be ascertained and maritime delimitation completed.

By requesting the Arbitral Tribunal to apply the Convention to determine the extent of China's maritime rights in the South China Sea, without first having ascertained sovereignty over the relevant maritime features, and by formulating a series of claims for arbitration to that effect, the Philippines contravenes the general principles of international law and international jurisprudence on the settlement of international maritime disputes. To decide upon any of the Philippines' claims, the Arbitral Tribunal would inevitably have to determine, directly or indirectly, the issue of territorial sovereignty over both the maritime features in question and other maritime features in the South China Sea. Such a decision would unavoidably produce, in practical terms, the effect of a maritime delimitation. The issue of territorial sovereignty falls beyond the purview of the Convention. China maintains that the Arbitral Tribunal manifestly has no jurisdiction over the present case.

III. There exists an agreement between China and the Philippines to settle their disputes in the South China Sea through negotiation, and the Philippines is debarred from unilaterally initiating compulsory arbitration.

With regard to disputes concerning territorial sovereignty and maritime rights, China has always maintained that they should be peacefully resolved through negotiation between the countries directly concerned. In the present case, there has been a long-standing agreement between China and the Philippines on resolving their disputes in the South China Sea through friendly consultation and negotiation.

A series of bilateral instruments between China and the Philippines make it clear that both sides agree or undertake to resolve their disputes in the South China Sea by friendly consultation and negotiation. And the Declaration on the Conduct of Parties in the South China Sea (DOC), signed by both China and the Philippines, explicitly states that territorial and jurisdictional disputes shall be resolved peacefully by sovereign states directly concerned through friendly consultations and negotiations.

The relevant provisions in those bilateral instruments and the DOC are mutually reinforcing and form an agreement between China and the Philippines. On that basis, they have undertaken a mutual obligation to settle their relevant disputes through negotiations and have excluded any other means of settlement. In these circumstances, according to the provisions of Article 280, 281 and others of the Convention, the relevant disputes between the two states shall be resolved through negotiations and there shall be no recourse to arbitration or other compulsory procedures.

At present, in order to maintain stability in the region and create conditions for peaceful resolution of the disputes in the South China Sea, China and the ASEAN (Association of Southeast Asian Nations) member states have established working mechanisms to effectively implement the DOC, and have been engaged in consultations regarding the Code of Conduct in the South China Sea. By initiating compulsory arbitration at this moment, the Philippines is running counter to the common wish and joint efforts of China and the ASEAN member states. Its underlying goal is not, as the Philippines has proclaimed, to seek peaceful settlement of the South China Sea issue, but rather, by resorting to arbitration, to put political pressure on China, so as to deny China's lawful rights in the South China Sea through the so-called "interpretation or application" of the Convention, and to pursue a resolution of the South China Sea issue on its own terms. This is unacceptable to China.

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